Thursday, November 29, 2012

It’s the most shocking scene in Spielberg’s Lincoln. After a dramatic climax in the
House chamber, Thaddeus Stevens returns to his home, bearing the official copy
of the 13th Amendment. Stevens eventually makes it to bed, with his
mulatto housekeeper, friend, and romantic partner, Lydia Smith. And here’s
where it gets shocking: In their shared bed, Stevens gives Smith the text of
the amendment, and Smith reads it.
Aloud. For Stevens and for us, the audience.

Why is this shocking? I want to suggest that the condition
of possibility for the dramatics of the narrative to be dramatic, the condition
of possibility for the story to lovingly depict the parliamentary machinations
required to emancipate slaves, is that this amendment, its very text, not be
read. The amendment cannot be read if we are to affectively invest in the
story, if we are to read this as a story of the generalization of juridical
freedom. And that’s because, well, if you were to rip the amendment out of
context, if you were to read or hear the text from the very beginning of the
play, you might become confused, you might decide that the juice wasn’t worth
the squeeze, you might think, “Wait, I thought we were trying to abolish
slavery, not provide positive constitutional mechanisms for establishing it.”
So, let’s read it:

“Section 1. Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to
their jurisdiction.

Section 2. Congress shall have power to enforce
this article by appropriate legislation.”

“…except as a punishment for crime whereof the party shall have been duly convicted.” Let’s leave this
clause hanging, and think about the varied ways in which Lincoln has been criticized from the left. (I want to note, at the
outset, that I’m in full sympathy with these critiques.) Kate Masur has critiqued
this scene for staging in micro the film’s general assumption that freedom
was a gift handed over to passive blacks by do-gooder whites; Steven literally
hands freedom to Stevens. Masur directs our attention to the public and
activist lives of the black characters whom Lincoln
treats as bit players (Keckley, Smith) in order to recover black agency in
the work of antislavery. Others have extended and intensified Masur’s critique,
with
Aaron Bady in particular showing how the film’s investment in not foregrounding black emancipationist
agency derives from its “realist” optimism in liberal reformism. Bady directs
us toward more radical interpretations of the 13th Amendment and
Reconstruction—Du Bois and Foner, mostly. Foner
himself makes the point that slavery was already dying if not dead; the 13th
Amendment is a juridical-textual inscription of an accomplished social
movement, the Du Boisian “general strike” of slaves fleeing toward Union lines.
All of these critiques want to locate the social and political origins in the
amendment in black (and feminist) social movements, and surely they’re correct:
emancipation became a juridical necessity as a consequence of such movements.
But if the impulse to generalized emancipation derived from black
self-activity, where might we locate the origins of the emancipatory text
itself? And why—given that the text actually enables positive legal arguments
for slavery—do we think of this amendment as actually emancipatory? Between
on-the-ground emancipatory self-activity and its legal inscription, something
got in the way, some kind of legal reasoning that translated an absolute
refusal of servitude into a conditional refusal: “…except as a punishment for
crime whereof the party shall have been duly convicted.” Where did this legal
reasoning originate?

We need to keep in mind that positive-legal authorizations
of slavery from the federal legislature were rather scant. Federal statute laws
that took “slave” as a juridical category typically operated according to a
principle of comity: If the legal regime of x state treated a black person as
property, the legal apparatus of y state would need to so treat that property
in the event of, say, the capture of a fugitive. Massachusetts would have to
respect Carolinian law. That’s not the same thing as the production of a
positive federal law authorizing slavery—it rather places the burden of
legitimation on a given state. Broadly speaking, federal law treated slavery in
a de facto fashion; its juridical positivity was a state-based affair. And thus
the strangeness of the 13th Amendment: in consolidating a national
legal regime, it actually produces a positive legal rule for enslavement: “…except
as a punishment for crime whereof the party shall have been duly convicted.”

Why this clause? Where did it come from? As it appears in
the film, particularly at the moment of its reading, the amendment is a highly
localized, domestic affair. In Smith’s mouth, the amendment does double work:
it functions simultaneously as public/legal and private/intimate speech, even
as the physical circulation of the document articulates the congressional
chamber with the congressman’s bedchamber. And, indeed, it’s only within this
domestic context that the text is legible as an antislavery instrument—we need
to know that the do-gooders in the film will not use this amendment as a legal
argument for enslaving blacks. We need to know, through constant assertions,
that this is an instrument of freedom—as, indeed, it was. But what if we pry
this amendment from its domestic moorings, if we set it adrift in a field of
international legal reasoning?

We would actually see that the legal instrument of the 13th
Amendment, the Amendment of Emancipation, draws upon the legal reasoning of
slavery. Writ positively, the amendment might read: “Slavery shall exist only
on condition that the party shall have been duly convicted of a crime.” But
that is precisely the mode of legal
argumentation used to justify slavery and, moreover, the slave trade. Enslaved
Africans were already convicted, as a proslavery jurisprudence had it. This
conviction might have been theological and racial in origin—the
curse of Ham. But there were non-theological legal arguments made as well.
Slavery, apologists argued, was a recognized feature of African legal regimes.
Persons could be enslaved under African commercial law (debt law, for
instance), under African criminal law (as a punishment), or under African jus
gentium (as a mode of humanely dealing with prisoners of war). Curiously, these
apologists—elsewhere and always ready to cast Africans as decultured,
uncivilized, as lacking anything like a state—understood Atlantic slavery as
the effect of a kind of comity, of Atlantic legal regimes accepting juridical
distinctions made in Africa by Africans. (These arguments, of course, tended to
break down once the inheritability of the status of slave required defending.)
I’m suggesting, though, that the amendment itself draws upon a mode of
international legal reasoning that was always functional for the maintenance of
slavery.

So, one effect of the Amendment’s passage was, strangely, to
deactivate a mode of legal reasoning that ascribed legal reasoning to African
polities—that saw Africans, and not just those in Sierra Leone or Liberia, as
inhabiting thick legal regimes that operated at multiple scales. Another effect
is that, well, the Amendment only makes sense as an instrument of freedom
provided that it is insistently embedded within a nation-centered mode of legal
reasoning and legal practice. And, indeed, the film works to insistently elide
any mention of the world beyond, which is nonsense. As a point of fact,
emancipation in the U.S. was thought about in expansive, transnational terms.
Latecomers to emancipation, U.S. politicians, administrators, and the general
public had at their disposal a whole repertoire of examples of programs for the
abolition of slavery—Haiti in the revolutionary era, the British West Indies in
1834/8, the French Antilles in 1848, and much of postimperial Spanish America
through the early to mid nineteenth century. We know that these examples did a great deal of work for both pro- and
anti-slavery thinkers. We know that
public chaps in the U.S. borrowed freely from the legal, administrative, and
economic discursive resources of the British, in particular. We know that a whole series of practical,
on-the-ground exchanges between do-gooders and freedpeople in the West Indies
and their counterparts in the U.S. lent a concreteness to the abstract
comparisons that circulated through Northern and Southern print worlds.

But we also know, I think why these transnational and
international exchanges need to be ignored. On one hand, Lincoln can’t really
appear too unique when you realize that lots of places had already outlawed
slavery. On the other hand, we can’t look too deeply into the ugly origins of
the 13th Amendment’s mode of legal reasoning. It would be
disconcerting, after all, for good pious citizens to realize that something
like the 13th Amendment could have been written and read on the
shores of Africa by a slave-trader who, upon concluding negotiations with a
local ruler, prepared to load his cargo of criminals aboard his slave ship.

Friday, November 9, 2012

You’ve probably seen this image. Juxtaposing “Free States and Slave States, before the Civil War”
alongside a red/blue breakdown of voting in the 2012 election, the image
asserts a kind of continuity—if not a direct causality—between contemporary
geographies of party affiliation and antebellum geographies of slavery. You
might have smirked. You might have found it revealing. Maybe—as it did me—the
image left you with an uneasy feeling, the felt beginnings of a refusal of the
claim that the image would like to make.

A full disclaimer: I’m an
anarcho-Marxist; I don’t vote; I’m not invested in blue-state- versus-red-state
nonsense; my political position does not register on this map. I do, however,
study nineteenth-century cultures of slavery and freedom in the Americas. I
write about the strange cartographies generated by ordinary black subjects who
sought to live free lives—however they defined that freedom—in a hemisphere
structured to deny them personal and collective autonomy. I find myself
responding to this image not just as a scholar, but as someone with some kind
of a felt relationship to the stories I read and recover, someone constantly
awed by the resilience and creativity of these people, someone who thinks there’s
a future to-come for these myriad freedoms that survive, obscured and only
partially legible to us today, in the archive.

This image pulverizes
history, transforming histories of slavery into the stuff of cheap political potshots.
It shouldn’t need saying, but alas: Voting for Mitt Romney is NOT akin to
maintaining juridical support for slavery—an analogy or commensurability that
the synchronic axis of the image suggests. This mobilization of an affectively
saturated history is repulsive not only for its cheapening of the deep violence
of slavery, but also for the way in which it dissolves the instabilities of
historical time into a simple one-two diachrony. If we actually look into these
instabilities—that is, if we fucking take the politics of slavery seriously—these
maps, and the historical narrative that their juxtaposition implies, comes
apart.

This image attempts to draw
on a historical juridical distinction between slave and free state in order to
offer a snarky commentary on the contemporary distinction between red and blue
state. This distinction no doubt flatters liberals, ever on the side of
progress. But what if we chose another cartographic heuristic? What if we
compared the electoral breakdown of 2012 with a map colored according to
polities wherein free blacks could vote in the antebellum U.S.? Antebellum “blue
states” would shrink to a handful. What if we compared the electoral breakdown
of 2012 with a map colored according to polities wherein African Americans
faced some form of legal disability? And what if we compared the electoral breakdown
of 2012 with a map colored according to, not slave states, but states wherein
blacks were enslaveable—that is, states wherein New World blacks, provided
a however tenuous legal title could be shown, were susceptible to being seized and
carried to a slave state? The map would bleed a bright red, the whole of it.

In 1850, there were no “free
states” in the U.S., if by “free” we mean a state wherein an ordinary black
subject could live free from the threat of unfreedom, from civil and legal
disability. And more: this realm of unfreedom, even when dragging as freedom,
was only expanding in the nineteenth century. Indeed, our good liberal mapmaker’s
decision to show us a map from a decade or so prior to the outbreak of the
Civil War allows him or her to get around the disconcerting fact that the map
of the United States would have had far fewer states only a handful of years
prior to 1850. (It's unclear to me why the map is dated to 1846.) The map thus elides histories of imperial expansion—into Indian
territory, into Mexico, and earlier into Florida and into the Louisiana
territory—and thus elides “blue state” connivance in the extension and
maintenance of slavery, the North’s compromises and its cowardice. It elides
how our proto-Obama-voting “blue states” actively profited from slavery both
within the U.S. and throughout the hemisphere, by financing plantations and
engaging in the (illegal) slave trade. It ignores how the dynamics of
capitalist accumulation—which, in the nineteenth century, ALWAYS implied some
form of bonded labor, some form of slavery—cut across sectional lines.

This image posits that the
juridical distinction between slave and free is isomorphic with today’s
cartographies of parliamentary politics; it implies that today’s Northern liberals have
inherited, and protect, the precious freedom(s) denied to so many in the
antebellum world. It implies that the rupture of the Civil War was not much of
a rupture—continuity is the name of the game here. It thus elides the
discontinuous rupture of black political subjectivity: the image would have us
believe that today’s political cartography retains the form adjudicated 162
years ago by the desires and compromises of (mostly) white men, all of whom in
some fashion profited from the political and juridical de-subjectification of
blacks throughout the Americas.

Perhaps most insidiously, by
posing electoral politics as the inheritor of antebellum politics of freedom
and slavery, this map implies that the political unconscious of freedom and
antislavery was always already preformed by the parliamentary cartography of
the nation-state. In other words,
the image not only disavows imperial histories of expansion, the ways in which
the U.S. electoral map was always on the move; it also elides alternative
cartographies and trajectories of freedom, however fragile and ephemeral,
established by blacks who recognized the difficulties of achieving autonomy in
any state, North or South. The nation comes to appear as the natural container
of relations of freedom and servitude, of progress and regress. The image doesn’t
care about the alternative modalities of being-free that were sought outside of
the institutional parameters and geographic boundaries of the parliamentary
state; it doesn’t care about modalities of human freedom that cannot be
contained or enumerated by ballots. It simply doesn’t matter to this image that
blacks in those anachronistically blue states formed political subjectivities
around August First or celebrations of the Haitian Revolution, not some act on
a Tuesday in November most couldn’t participate in, anyhow.

The radical promise of
antislavery—substantive antislavery, the material practices of freedom
undertaken by New World blacks—has as little in common with the reduced notions
of formal freedom available in the antebellum North as it does with the reduced
notion of political freedom enshrined in parliamentary politics. Celebrating
liberalism’s present, lambasting remnants of the South’s (but only the South's?) past, this racist image
transforms the awesome, terrible, unfinished history of freedom into a persistent structure—one
assembled by white men, for white men. But this is what the image, fixated on juridical and electoral
geographies, cannot reveal. Even as it tries mobilizing the
affectivity of the term, the discontinuous, unemplottable subjectivity of
freedom remains elsewhere.